4th Parliament · 2nd Session
The President took- the chair at 10.30 a.m., and read prayers.
asked the Minister representing the Minister of Home Affairs, upon notice -
The number of prosecutions for alleged electoral offences, distinguishing between those resulting in conviction and those in acquittal in respect of -
The general election of 1906;
The referenda of 1906;
The general election of 1909;
The referenda of 1910?
– The information is available, and “will be laid on the table in the form of a return.
asked the Minister representing the Minister of Home Affairs, upon notice -
Will he make available, if they are required on the introduction of New Works and Buildings Estimates, the reports of the Commonwealth Inspector of Works on the condition and requirements of the post-office buildings in the State of Queensland?
– The answer to the honorable senator’s question is -
It is assumed that the honorable member refers to the report of a< Departmental Committee which was appointedto consider probable building requirements of ‘ the Postmaster-General’s Department in Brisbane. Such report will be made available to the honorable member at any time.
That this Bill be now read a second time.
I do not think that the history of any piece of legislation could be more interesting than that of the Conciliation and
Arbitration legislation which has been attempted in Australia. Almost since the inception of the Commonwealth an effort has been made by the members of the Labour party to bring into existence laws which would have the effect of permanently settling industrial disputes arising in Australia. But, although everything has been done by the members of that party to make the legislation as perfect as possible, through the persistent opposition of certain representatives of the people, both in the House of Representatives and in the Senate, it has been found to be so imperfect that effect cannot be given to the best intentions of its framers and its supporters. I might also say that, to a very considerable extent, the effectiveness of this legislation has been hampered by the Constitution itself, and by the limited interpretation which has been put on the Constitution by the Judges of the High Court. I have no desire, nor does any one on this side I am sure desire, to reflect in the slightest degree on the Judges of the High Court. They have a perfect right to interpret a law of the Commonwealth as it presents itself to them; and they have done so, although in many instances their interpretations appear to be strained in the direction of limiting the powers of this Parliament as far as the Constitution is concerned.
– Is that a fair comment on the Court?
– I think not.
– I think it is.
– To say that the Judges strain the Constitution?
– If Senator St. Ledger was a Judge of the High Court, and interpreted the Constitution in a direction contrary to that in which I would interpret it, I would have a perfect right to : say so. My statement would be no reflection on the honorable senator. It might even be a reflection on myself, showing that my horizon was less extensive - if it were not even more extensive - than his. That is all that could be said, and I have no desire to say any more with respect to the Judges of the High Court. My honest opinion is that they do their duty fearlessly and conscientiously.
– And yet you say that they have strained the Constitution.
– I am not going to admit that their interpretation of the Constitution is the “ be all and end all “ of the wisdom and knowledge of the world. I have as much right to my opinion as has any one of the Judges,, and Senator St. Ledger has the same right to his opinion. But be that as it may, it has been apparent to every one that the interpretations placed on the Constitution in respect to legislation passed by this Parliament have limited its powers as far as they could possibly be limited. There is no denying that. In the interpretation of a law, when it is not a question of fact, a good deal depends upon those who have to give the interpretation and the point of view from which they look at the law. I submit, in all sincerity, that any person has a right to criticise these interpretations, and yet admit the honesty of those who give them. This is not the first attempt which has been made, and successfully made, to widen the scope of the Conciliation and Arbitration Act. The necessity for it is to be found in interpretations of the Constitution by the High Court in connexion with industries and bodies of men organized in particular trades. Senator St. Ledger cannot deny this proposition if he looks at the Bill, and takes into consideration what has transpired. I may refer particularly to the engine-drivers’ organization. A case was taken by them before the Conciliation and Arbitration Court : a decision was given there, and then it was upset by the High Court on the technical ground that, although this may be an organization, yet since its members are distributed in various industries throughout the Commonwealth they have to apply for redress, not through their own body, but through the particular industry in which they are employed. For example, an engine-driver is employed in a soap works at Footscray, , or other suburb of Melbourne, or in any city of the Commonwealth, and the engine-drivers of Australia apply to the Arbitration Court, and obtain, an award which is appealed from. According to the decision of the High Court they can only make a claim through the industry with which they are connected ; that is, the engine-drivers employed in soap works can only get an award in connection with the soap industry. To my mind, a more ridiculous position to. put an organization in could not be imagined, much less expressed. An engine-driver may work in a saw-mill or a tannery, but common sense would suggest that his case should be dealt with in connexion with the organization of engine-drivers, and not in connexion with saw-mills or ‘tanneries. I am sure that Senator St. Ledger must admit that. The object of this measure is to make it clear that the organization of the craft is the principal consideration, and not the organization of a particular industry in which many individuals belonging to different organizations or crafts are employed. I could give numberless instances. Suppose that, we take a body of men which has been pretty well canvassed throughout Australia for some time. The United Labourers Union . appealed to the Arbitration Court for the redress of some grievances, either real or imaginary. I am not going to maintain that all the claims which are made by my fellow workers throughout Australia are most reasonable - although they generally are - because sometimes they may make a mistake, as the best and wisest people in “the world do. Suppose that the United Labourers Union of Australia applied to the Arbitration Court, and it was found that some members of that organization were working at buildings, some at navvying, some at fruit-picking, and some at onerhundred-and-one other callings, in which an ordinary labourer is - entitled to work; and that, after a decision had been given by that Court, in favour of the organization, the High Court turned round and -said, “ No ; these men can only claim what they are asking through the fruitpickers’ industry, or the saw-mill ‘ industry, or’ the ‘ builders’ industry, or a navvy -organization!” Cannot the ridiculousness of . ‘the’ position be discerned at once?
– But that arises out’ pf the. Constitution, or the Act, or out of both; but not out of the High Court.
– It may apply to the Constitution, or the interpretation which is . placed upon it, or it may apply to the Act. or the interpretation which, is placed upon it. It does not matter whether the case is reasonable or unreasonable. As far as the High Court is concerned, it is the interpretation which decides whether a member of a craft can obtain redress through the organization of that craft. In every case which has been tried, little technicalities of this description have crept in; and the High Court has taken advantage of them to defeat what I would consider to be the humane and just decisions of the Arbitration Court.
– Is not that distinctly unfair comment’ on the High Court?
– I am not saying that it is done with the intention of doing an injustice to anybody, but advantage hasbeen taken of technicalities to defeat attempts to obtain redress of grievances or what have been proved to be clear cases of injustice.
– Do you say that the High Court purposely takes advantage of technicalities ?
– I did not sayso. The honorable senator is very fond of putting words into my mouth. I say that the High Court, in the discharge of its high duties, takes these technicalities into consideration, and gives its decision according to its interpretation of the Act or the Constitution and not according to the intentions of Parliament.
– Your phrase “ taking advantage ‘ ‘ was unfortunate.
– It may be unfortunate as far as the honorable senator is concerned, but I know how I feel ons this question, and I know how hundreds, nay thousands, of the workers throughout Australia feel on it. Where it is merely a point regarding the dotting of an “ i “ or the crossing of a “ t “ the interpretation has’ invariably been given in the narrowest sense, and it has always gone against the best interests of the class who are creating all the wealth of Australia. No ohe candeny that. In connexion with almost everyone of these decisions, it has become necessary to appeal to Parliament to so frame the Conciliation and Arbitration Act that the interpretation should be giveii in the direction which Parliament intended, and’ in the direction which the people of Australia intended when they agreed to that portion of the Constitution dealing with conciliation and arbitration.
– Is not that the very thing that the people refused by the referenda ?
– No. I will tell’ the honorable senator what occurred in connexion with the” referenda. The’ Common-^ wealth Parliament appealed to the electors-‘ of Australia for unlimited powers with respect to industrial matters. What I may call mercenary ‘ newspapers and highly-paid1 political touts mystified the electors tosuch an extent that they’ hardly knew what they were doing.
– That is rather rough on the’ whole of the Labour party.
– The Labour party has “no paid touts. It has no touts of any description. The members of the Labour party do not go round the country endeavouring to misrepresent anything ; they tell the truthj the whole truth, and nothing but the truth.
– You are misrepresenting things now.
– I am endeavouring to put matters plainly and honestly, and the more honestly they are put the more dissatisfaction members of the Opposition exhibit. They do not like things to be put plainly and honestly.
– You are not using a single word in any of your sentences honestly.
– They are all honest to my mind, and if they were not I would not use them. The principal object of the Bill is to enable the Conciliation and Arbitration Court to deal with industrial disputes whether they are disputes in existence, disputes in contemplation, or even possible disputes. That is provided in clauses 2 and 3 which amend section 4 of the principal Act. In section 4 of the principal Act many of the matters contained in the Act are defined. This Bill strikes out the reference to employers and employes, and by widening the definition of “ industry “ merely makes the Act refer to industrial matters, so that there can be no quibble as to whether a certain employer is in a certain position, or as to whether a certain body of employes occupy a certain position. If an industrial matter is referred to, then the decision of the Court will be final. I believe that is what honorable senators and the people really want. What we desire is that when a case is brought before the Conciliation and Arbitration Court it shall be dealt with on its merits, and that the issue shall not be decided upon some technicality that has little to do with the main -question. We believe that the amendments contained in clauses 2 and 3 will give the Conciliation and Arbitration Court a far better opportunity of bringing about the conditions in connexion with labour and employment which we desire than it has at the present time. I believe that honorable members on both sides of the Senate desire that industrial disputes shall be decided in a way that will tend to the best interests, not only of a section of the community, but of the whole of the people of Australia. I believe also that honorable senators opposite have the same desire, : but I think their want of experi ence in connexion with the great body of working people of Australia very often clouds their judgment as to what is necessary to set everything on a fair footing. The Bill makes many other amendments in the existing law in connexion with minor matters. I might occupy much of the time of honorable senators in going into the details of those amendments, but Committee is the proper place to deal with the details of any Bill. I confidently place the measure before the Senate, and hope that it will be passed very speedily. .
Debate (on motion by Senator Millen) adjourned.
In Committee (Consideration resumed from znd November, vide page 2146):
Clause 8, as amended -
After section sixty-one B of the Principal Act the following sections are inserted : - “61c- (1.)It shall be the duty of every person, who is entitled to be enrolled as an elector and who is not so enrolled, to fill in and sign, in accordance with the Act and the regulations, a form of claim for enrolment as an elector and to forthwith send or deliver it to the proper officer. (2.) It shall be the duty of every elec tor who ….has changed his place . of living …. to fill in and sign …. a form of claim for transfer ….
Upon which Senator Vardon had moved -
That the words “ It shall be the duty of “, line 3, be left out.
– Do I understand that the Honorary Minister has agreed to accept Senator Vardon ‘s amendment. I may remind the Honorary Minister that when we reported progress last night he gave an undertaking that he would look into - the matter, and that if he was assured that the recasting of the clause in the waydesired by Senator Vardon, in order to bring it into conformity with our general method of drafting, would not in any way weaken the provision, he would -consent to it. I expected that the Minister would make some communication to the Committee.
– I did give the Committee the assurance which the honorable senator refers to, and I have acted upon it. I made inquiries, and I find that it will not make any material difference if the clause is drafted in the way suggested by Senator Vardon. I was waiting for Senator Vardon to submit to the Committee the exact form in which he desired the clause to be amended.
– My desire is that the clause shall read in such a way that there shall be no misunderstanding as to what it provides. We have provided that there “ shall “ be compulsory enrolment. The proposed new section commences by saying - “ It shall be the duty of every person “ to enroll.
Sena.tor St. Ledger. - It is an obligation.
– By the clauses we have already passed we have made it obligatory for people to enroll. I therefore wish to strike out the words I have quoted. If that amendment is carried I shall propose other amendments so that the clause will read -
Every person who is entitled to be enrolled as an elector, and who is not so enrolled shall fill in and sign in accordance with Act and the regulations a form of claim for enrolment as an elector and forthwith send or deliver it to the proper officer.
– I would like the word “ shall “ to be inserted before the word “ forthwith.”
Amendment agreed to.
Amendment (by Senator Vardon) agreed to-
That the word “ to “, lines 5 and 8, be left out and the word “ shall “ inserted in lieu thereof.
Sub-clause 2 of proposed new section consequentially amended.
Proposed new section 6ie -
In any prosecution in any Court of summary jurisdiction in respect of any contravention of any of the regulations relating to compulsory enrolment, instituted by any officer or by any person acting under the direction of an officer, the averments of the prosecutor contained in the information or complaint shall be deemed to be proved in the absence of evidence to the contrary.
– I wish to make an appeal to the Minister for the reconsideration of proposed new section 6ie. I cannot really think that, after consideration, this provision will command the assent of the Committee. The proposed new section provides that the averment of an officer is to be regarded as sufficient proof, in the absence of evidence to the contrary, of the contravention of any of the regulations relating to compulsory enrolment. That is to say, we are asked to make a radical departure from what has been described by Mr. Justice Higgins as the first principle of justice. I urge that there is no justification for making this departure in the present instance. As far as I know, there are only two cases in Commonwealth law where we have adopted the principle of calling upon the defendant to prove his own innocence. They are cases which arise under the Customs Act and under the Australian Industries Preservation Act. With regard to Customs, it was, of course, obvious from the experience of many years and of many countries, that there was sufficient justification for such a wide departure from ordinary judicial procedure. But with regard to the mere matter of compulsory enrolment, to say that when an officer makes the averment that somebody has broken a regulation that in itself should be sufficient proof of an offence, is surely going too far. We do not even know at present what the regulations which may be broken are to be. The chances are that ninety-nine out of every hundred electors will be ignorant of them when they are framed. But if an elector breaks one of these regulations it will be sufficient for an electoral officer, on taking proceedings against him by summons to make an averment, and the very accusation will be regarded as sufficient proof that the offence has been committed. I have no hesitation in saying that the proposed new section had its genesis in the Department, and not in the Ministerial mind. All officials somehow instinctively get the idea that they can be trusted with any power they choose to ask for, and that they are not likely to abuse it. They are doubtless honest in that belief. But it is one thing for officials to have such an idea and quite another thing for the Legislature to intrust them with such sweeping powers.
– Is not the proposed new section intended to operate when there is no evidence for the defence?
– If I make charges against Senator Henderson-
– The honorable senator has made scores of them !
– Unfortunately not before an unbiased jury, or the honorable senator would not be here now 1 If I make charges against Senator Henderson, and the case goes into a Law Court, he has the right to say, “ You have made charges against me; prove them.” The Court does not say, “ Senator Henderson, certain charges have been made against you, and’ it is now for you to disprove them.” The principle of British law is that a man who makes an accusation must bring forward proof in support of it. The person accused is under no obligation to reply until the charge against him has been proved. Under this proposed new section there would be no need for the prosecution to demonstrate the truth of the charge. The accused would simply be called upon to disprove it. I urge the Committee to strike out proposed new section 6ie.
Senator FINDLEY (Victoria - Honorary Minister) (11. 10]. - I cannot agrpe to the suggestion of Senator Millen to eliminate the proposed new section. I do not think that the Committee need take too seriously the view that he has expressed. First we make provision for compulsory enrolment. We now provide that where a person has neglected to do his or her duty, unless reason can be shown to the contrary by a person whose name is not on the roll, the averment of the officer that enrolment has not taken place shall be sufficient. The person will get an intimation from the Department. Then, in order to save the person from going into the Law Courts , and having publicity given to a matter which, after all, is very small indeed, we provide that the mere statement of the officer shall be sufficient proof. .
– That is to say the person accused may accept a verdict of guilty.
– If a man or woman can show that a regulation has not been contravened no prosecution will be initiated. There is no analogy between the cases cited by the honorable senator and this instance. Serious charges may be made against persons under other Acts, but in this case the charge will not be a serious one at all.
– The less reason for the severity of the procedure.
– Wherein is the procedure severe? A man or woman has lived in a district for a certain time, and will know that compulsory enrolment is the law of the Commonwealth. If a person neglects to do his or her duty by enrolling, penalties will be incurred. The accused person will have the option of showing that the law has not been broken. If that be shown the Department will not prosecute.
– It is not the Department, but the Court that is dealt with under 6ie.
– Does not the honorable senator think that the Department will take certain steps before a case reaches the Court stage? The Committee may rest assured that the desire of the Department, no matter what Government is in power, will be to have as few cases brought to Court as possible.
– Read the first line of 6ie - “ In any prosecution in any Court of summary jurisdiction.” The case will have got beyond the departmental stage.
– The honorable senator anticipates a stage. I am dealing with matters before they reach the Court stage. I believe that very few cases will ever get to court. The Department would make itself ridiculous in the eyes of the community if it brought cases to Court and could not prove its charges.
– The Department is not required to prove its charges. That is the whole point.
– The proof is that the person accused ought to have enrolled and has not. It is a very small matter indeed to engage the serious attention of the Committee.
– Let the Department prove its case in Court in the ordinary way.
– We want to prevent the Department having to go to Court and to involve the Government and citizens in inconvenience and unnecessary expenditure. I hope that the Committe will not eliminate the proposed new section.
– Proposed new section 6ie initiates a very distinct departure from the principle adopted in the Customs Act 1901 and 1902, when we first introduced a provision of this character in the law of the Commonwealth. We there provided that in certain instances the averment of the prosecution should be taken to be proof, in the absence of evidence to the contrary. It was pointed out at the time that it was a wide departure from a well-established principle of British jurisprudence to throw the onus of proof on the defendant, whereas in all cases previously the onus of proof had rested on the prosecution. But it was pointed out then, as could not possibly be urged in the present instance, that there are in many Customs cases serious difficulties in proving the guiltof accused persons. The information necessary to constitute proof often lies locked up in the breast of the defendant himself. The prosecuting Department cannot always be expected to have the same means of knowledge as he has. Moreover, it was pointed out that the defendants in all those cases were persons who were conducting business under the Customs Act, and would necessarily be conversant with its provisions. They would know that in every instance in which they were summoned the onus of proof would rest upon them, when it did rest upon them under the provisions of the Act. That is not the case here. I hope the Minister will realize that we ate dealing here with prosecutions not for offences that are now being created by the Bill, but for offences that are hereafter to be created by regulations. We are hot now providing that certain acts or omissions shall be offences against the law. These are to be offences established by regulations.
– But dealing directly with compulsory enrolment.
– I pointed out on a. previous occasion that we are being asked to give carte blanche to the Minister and the Department, in connexion with this system of compulsory enrolment, to provide all the machinery. We are making provision for regulations which will provide for certain offences, and we are now asked by legislation to say that, if any one is charged with the commission of an offence against those regulations, the averment of the prosecution shall be deemed to be proved unless he can disprove it. Not one of us’ knows at the present moment what those offences will be, since they are not set out in the Bill. The similar provisions of the Customs Act apply only to traders and persons who, from their daily association with the business of the Customs, are conversant with the existence of those extraordinary provisions in the Act.
– Every one will be conversant with the regulations in connexion with compulsory enrolment under this Bill.
– Quite the contrary. Every one ‘in the community takes it for granted that if a person is summoned before a Court of summary jurisdiction, such as a Justices Court, or a Police Court, there is no possibility of his being convicted of an offence unless the prosecution proves it. Every one would be justified in assuming, if he were summoned for an offence against the Electoral Act, that the ordinary procedure would be followed. A layman, looking through the Act, and reading even this proposed new section, would not understand that, if he were prosecuted for an. offence against the regulations under this provision, the averment of the prosecution would amount . to proof. The Minister must have been moved to consent to the introduction of this principle in the Electoral Act on departmental, and not political, considerations. The Electoral Branch of the Home Affairs Department should recognise that it is on a totally different plane from the Customs Department.
– Hear, hear; one is a major matter and the other a minor matter.
– I am sorry for the Minister if that is the way in which he puts it here. If, in this matter he had reversed the order, he would have been perfectly correct. I do not know whether the honorable senator has had any experience in the administration of the Customs Department temporarily, in the absence of the Minister of Trade and Customs, but, even without the close knowledge which an experience of that kind would give, he must realize that the Customs Department is dealing daily with Customs experts in the community. The shipping clerks of important firms are really Customs experts. They know the Customs Act from end to end, and, in many cases, doubtless better than do the officials of the Department. They are not taken unawares when prosecuted.
– May I suggest another reason, namely, that there is an incentive to fraud under the Customs Act which is entirely absent here?
– That is so. But it will be admitted that persons prosecuted under the Customs Act are not taken unawares.
– Every one in Australia over the age of twenty-one will be familiar with the regulations in respect of compulsory enrolment.
– How many of those who are over twenty-one will ever read the Act?
– Every citizen over twenty-one years of age has been or will be supplied with a copy of the regulations.
– The honorable senator may supply every citizen of the Commonwealth with a copy of the regulations,” but how many will read them? How many will feel bound to read. them? Every merchant in the community is bound . to read the Customs Act if he is to carry out his daily, .duties properly, and every shipping clerk of a reputable firm must know the Act practically from end to end.
– How many boys read the Defence Act?
– How many who have read the regulations will be aware of this provision? I say that before we establish a system of this kind we should be abundantly certain that it is justified. We shall next have some other Department of the Public Service asking for similar legislation to come to its assistance. We adopted this principle in connexion with the Customs Department after lengthy debate and careful consideration, and not until it was shown to be justified for the reasons I have just stated. Those were compelling reasons, but there is not one of them which can be applied to this Bill. If similar legislation be adopted at the request of other Departments, the result will be that, in future, it will be competent for any officer merely to make an averment, and the mere fact that the party charged is not present when the case is called on will mean that he will be convicted without the case even being heard. At present, if a person charged with an offence does not attend in Court at the time fixed for the hearing of the case, because he is unable to appear, has mistaken the time, the date, or the place, or for any other reason, the case is heard ex -parte, but it is still an obligation upon the prosecution to prove the case in the absence of the defendant. Under this provision, however, if a person charged with an offence against the regulations fails to attend, or does not attend punctually, or at the proper place, the mere averment of the prosecution amounts to a conviction. The Minister says that this is only a minor matter, but a conviction in a Court of Petty Sessions for a minor offence is just as much a conviction as for a major offence. Let me point out further that, in the State of Victoria at any rate, unless the fine imposed exceeds £5, no proceedings can be taken to have the conviction quashed.
– The defendant can ask that the fine be increased to that amount.
– How can he ask that the fine be increased if he is not present when the case is heard? And let me tell the honorable senator that it is when the defendant is not present that this provision will operate.
– What is the use of stating hypothetical cases?
– The Minister will find that the greater percentage of convictions under this provision will be secured in that way. The Electoral Department of the Commonwealth is highly organized, and has all the means at its disposal of proving its cases. It has greater facilities for attending the Court, and submitting the circumstances of each case, than have average individuals. And yet this is a departure prompted undoubtedly by departmental rather than by political considerations. There is not the slightest analogy between prosecutions by the Electoral Office and prosecutions by the Customs Department, and there is not a tittle of justification for establishing, in connexion with the work of the Electoral Office, such a departure from the established system of jurisprudence, which is that no man shall be convicted on the mere averment of another. Why an officer of the Electoral Office should be able, in the absence of a defendant, to secure a conviction against him by a mere averment, I do not know. When we consider, further, that such convictions cannot be quashed, at any rate in the State of Victoria,- unless the fine imposed amounts to a certain sum, it is clear that, under this proposed new section, we shall be making provision for wholesale convictions.
– Will . this Bill prevent any elector entitled to enrolment appearing in any Court when a charge is preferred -against him?
– No. But if that is the reason, there is no excuse for this provision at all. My honorable friend has given the best reason why such a provision should not appear in the Bill. Is there any reason at all why the Electoral Office cannot be represented? I am saying that the bulk of the convictions under this proposed new section will be secured against persons who do not appear to answer charges against them. That is what it is designed for, and if it is not designed for that, it is of no use at all. If the defendants can appear-
– Thev will appear.
– The Minister should know that he is stating what is not in /accordance with practical experience. The Department, in this matter, wishes to shirk its responsibilities. It is a wellorganized Department, and why should it be relieved of the obligation cast upon every ordinary citizen and every business firm? Why should it be relieved of its responsibilities because it seeks to secure wholesale convictions against persons who may not realize that their presence in Court is even necessary? It is the persons charged with these offences who will be convicted and punished, and the Department will not be advantaged in any way. Why such a principle should be applied to the work of the Electoral Office passes my comprehension, and I am surprised that any Minister could be found who would yield to any such suggestion from the Department.
– I hope the Minister will consider the proposal made by the Leader of the Opposition. I look upon this provision to punish a man in’ the way proposed for an offence committed, perhaps quite innocently, as a very severe one. This provision places a person who neglects to get enrolled on the same plane as a person who defrauds the Customs revenue or as a company which combines with another company to carry on a practice in restraint of trade. We should be very careful before we depart from that well-established principle of British as well as natural justice that every person shall lie held innocent until he is proved guilty. It is pro posed that on the simple averment of an officer of the Court a person who neglects to get enrolled shall be held guilty until he proves his innocence. What was our object in departing, in the case of - the Customs Act, from that long-standing principle of fair play and natural justice? It was simply ‘to protect the revenue, to stop the commission of frauds, to prevent men from escaping from paying their just share of taxation. In the case of the Australian Industries Preservation Act, an attempt was made to secure a prosecution in certain cases where it had been very difficult, and where it will always be very difficult, to get evidence sufficiently clear to establish an offence. The only other case in which a well-established maxim has been departed from has been in regard to mining accidents. Under the law of Western Australia a mine manager is held responsible for an accident which may lead to the permanent injury or the death of any employe. The very happening of an accident in a. mine is -primd facie evidence of the guilt of the mine manager. In this provision it is proposed to place persons who, very often through no fault of their own, neglect to get enrolled on precisely the same footing as the three offenders I have mentioned. That is, I think, going too far. After all, what are we attempting to prevent ? If a person fails to enroll himself his act will recoil on his own head. He will find himself not enrolled.
– He will break the law.
– Yes, but a case of that kind is entirely distinct from the three cases I have cited, because no other person will be defrauded or injured. It is quite true that under the provision a certain end or object is sought to be attained in the public interest, but the act of a person who fails to get enrolled will recoil on himself, and not, as in the _ cases I mentioned, upon a second or a third party. To place his case on the same plane as the other three cases is really straining a principle to an unwarranted extent. We should look at things broadly, and recognise that very often in the ordinary turmoil and struggle of life a person forgets to enroll. In striving to get a livelihood and keep his end up as well as possible the last thing many a man thinks of is to get enrolled.
– Take, for example, prospectors who are moving about.
– I’ am thinking par.cularly of those who have too many things to do to think about getting enrolled, however laudable that may be. It should be borne in mind that the provision places a person who fails to get enrolled on precisely the same plane as a mine manager who wilfully allows things underground to go anyway, a Customs thief, and a powerful corporation which conspires with others in restraint of trade. We are asked to take a step too far ahead of the necessities of the situation. _ In my opinion the severity of this provision is altogether unwarranted. The fact that the neglect of a person to enroll will recoil on his own head, and affect no one else, should be taken into consideration. When a person objects to pay Custom dues or defrauds the Customs in any other way the community suffers. When companies combine and conspire to raise prices to the injury of people, arid with the result, perhaps, of causing untold misery, the community suffers. It is altogether unfair to place a person who fails to enroll on the same plane as a combination which seeks to bring widespread injury upon the community, or as a mine manager who allows things to be carried on underground in such a way as to lead to disastrous consequences to the employe’s.
SenatorW. RUSSELL (South Australia) [11. 38]. - I cannot see any hardship in this provision. I have listened most attentively to the discussion, and am very pleased with the stand which the Government are taking. I admire the Opposition, too, because their motive has been transparent from the beginning. They have not yet succeeded in achieving their purpose, and so they try, try again. But I do not blame them. They did their best to defeat the Bill, and having failed to do that they seek to weaken its provisions. Their amendments are proposed with the object of making the Bill, if possible, look ridiculous. This amendment may, if carried, lead to a lot of expense and worry on the part of the Government; it may also lead to work for lawyers. We want the law simplified. If a man is on a roll that fact can be proven, and if he is not on a roll he should account for that fact.
– But how can he?
– It is the duty of a man to be enrolled. Neither the Government nor their officers will act unfairly, and take advantage of any persons when they know that they have been absent from their State or electorate. Our Conservative friends on the other side have nothing to fear from this provision because most of the officers-
– We do not believe in holding a man guilty of an offence until his innocence is proved.
– The honorable senator has nothing to fear from the provision, because, in my opinion, most of the officers are on his side of politics. This is a simple clause, and it is necessary for the efficient working of the law. I was astonished to hear a lawyer like Senator Keating talk as he did. I thought that, perhaps, another member of the party, if he failed, would move that a Royal Commission be appointed to inquire into some of these trifling cases. To mention such cases in the same breath as Customs defrauders was, I think, unworthy of the honorable senator, and certainly beside the mark. If a man is not on a roll he ought to beable to say why he is not, and if he can give a reasonable excuse for his name not being enrolled the powers that be will treat him justly, if not with mercy. I support the Government in this matter.
Senator HENDERSON (Western Aus lengthy argument adduced in connexion with this provision. I think that Senator Lynch got quite outside the position for which he has been contending from the beginning. He put forward an argument against compulsory enrolment entirely. Either his argument meant that or it meant nothing. It is too late in the day to propound an argument of that kind, inasmuch as we have affirmed the principle of compulsory enrolment.
– I do not see how that affects this principle.
– I am pointing out that Senator Lynch used an argument not connected with this provision at all, but for the abolition of compulsory enrolment.
– I cannot see that.
– The honorable senator will not see it probably, but I can see it easily. When Senator Lynch cites the case of a mine manager who allows his mine to run all to pieces, and then draws an analogy between the mine manager and an elector who refuses or, for some reason or other, neglects to have his name placed on a roll, he certainly draws an analogy which must appear even to himself to be absolutely foreign to the question.
– It is the Bill which draws the analogy.
– Does any one imagine for a moment that any Government of Australia will go about like a great stalking-horse, devouring the electors or their money for the mere sake of having prosecutions ? I venture to say that this provision, whenever it is applied, will be applied in such a way that no man or woman who is not really guilty of neglecting to comply with the Act will suffer any penalty. Does anybody contend that the Government of the Commonwealth, when it comes to a question of deciding whether an elector has been guilty of neglect, wilfully or otherwise, will simply impose a penalty?
– The Government does not impose a penalty, but the Court does.
– What is the use of the honorable senator talking like that ?
– If the honorable senator is so dense that he cannot see the difference between the Government and the Court, I cannot help it.
– I am not so dense as the honorable senator would like me to be. I am clear enough in my comprehension to see the position he- is taking up. The little tricks he indulges in are seen through too easily. This provision, in my opinion, will inflict no hardship on any person. Probably it will not be very much used. I hope it never will be used, but that everybody will see the reasonableness of complying with the regulations. The Government intend to take steps to inform every elector what his duty really is. That is a thing that we do not do in respect to our criminal law, nor do we do it in respect to any other law. A man may go about Australia all his lifetime and never see the provisions of one of the laws passed by Parliament to control his citizenship. It is utter nonsense for honorable senators to talk about people being prosecuted unreasonably.
-Colonel Cameron. - Why complicate the situation ?
– I am not complicating the situation at all. We have decided that we are to have compulsory enrolment, and I believe in that. One of the details necessary to insure the proper carrying out of compulsory enrolment is embodied in this provision. It is made mandatory for people to carry out the provisions of other Acts, and no attempt is made to enlighten, them as to what those Acts contain. In this case the regulations will be submitted to every elector, anc therefore every elector will have the opportunity of knowing precisely what the law requires him to do. If he refuses to obey the law, and has no reasonable excuse for refusing, it is quite justifiable to impose ‘a penalty upon him.
– It appears to me that Senator Henderson and another senator who has spoken have purposely confused the issue raised by this clause. It has nothing whatever to do with what the Government may seek to do in its relation with electors. The Government are not called upon to administer this clause. The Court is called upon to do so, and when Senator Henderson tries to draw a picture of a Government so perfect that it is going to follow, study, and nurse every elector so as to keep his feet in the straight path, he is absolutely outside the clause, and he knows it.
– Is not the Court part of the government of the country ?
– I have no doubt my honorable friend wants to make it so, but hitherto one of the distinguishing features of the British system of government has been that it has kept the Judicature apart and distinct from the Legislature.
– The honorable senator is following his usual method of mystification.
– There is no mystification about it. If Senator Henderson cannot see the difference between the Judicature of the country and the administrative part of it I cannot help it. If he turns to any work on government he will see the distinction drawn. One thing that we have always done is to keep the Court - the officials whose duty it is to interpret the law - quite beyond the influence of the Government. Why is this proposal put in the’ clause? We have nothing to do at present with what happens in connexion with the Department’s efforts to get the electors to enroll. Weshall have passed beyond that stage when this clause becomes operative. It only becomes operative when a case has got into Court. The provision commences with the words, “ In any prosecution in any Court of summary jurisdiction.” When the provision comes into operation a prosecution may be launched. No longer can the Government or the officials of the Department do all the things that have been spoken of - issue millions of regulations, and so on. That has all passed when the case comes before the Court. By what reasoning can the Government justify the fact that they propose to exempt the officials of the Department, when a. case has got into Court, from the obligation that is laid upon every other citizen who makes a charge? In connexion with any other matter any person who makes a charge is called upon to prove it, but under the clause the high and mighty officials of the Department will not have to do so.
– If you make a charge of burglary you have to prove it.
– A man who makes any other charge is called upon to prove it. Why should the officers of the Department be relieved of an obligation which is placed on every other citizen who makes a charge?
– They are not relieved of that obligation. They make a charge, and the person charged can disprove it.
– Take this supposititious case. I affirm that Senator Findley was drunk yesterday. Now I ask Senator Findley ‘ to disprove that charge.
– The Department will affirm that a certain person ought to be on the roll, and that that person is not on the roll’.
– The provision does not only apply to that matter. It applies to any regulation that may be made. A departmental officer might bring the honorable senator before the Court, and say, “ Senator Findley ‘s name is not on the roll. That is my charge, and I have summoned him here to answer it.”
– He need not even produce the roll.
– He should have to produce the roll in Court to show that Senator Findley’s name is not on it, and should also have to prove that Senator Findley’s name ought to be there.
– Would any officer be so foolish as to charge a man with an offence unless he could prove it?
– Let him prove it, then. That is all we ask. The proposal of the Government is to make the officer, not merely the accuser, but the judge, because the Minister says that if the officer likes to think an offence has been committed, he is to determine that it has been committed. He should go before the Court and state the facts on which his charge is grounded, and it should be for the magistrate to say whether an offence has been committed. Let us take that section of the community which my friends opposite claim particularly to represent - the working classes. Take the navvies employed on railway construction in New South Wales, or other States, who are moving on all the time as the railway’ line is constructed.
– The very fact that we are here shows that the people who move about are very particular about being on the roll.
– I know the honorable senator will turn any matter into a joke if he can do so. Do honorable senators assent to the proposition that, because an official of the Department makes an accusation, the guilt of the person whom he accuses is proved?
– “ In the absenceof proof to the contrary.” Why does the honorable senator leave that out?
– Is it necessary to read the whole of the clause every time? As Senator Keating has pointed out, in the absence of the person charged, on the mere averment of a departmental officer that a regulation had been broken, the Court would have no option but to impose a fine.. Take the case of men who move about from one place to another.
– Don’t talk about the men moving about. They know what they are doing. The other day you blamed them for subscribing to The Worker.
– I did not blame them at all for subscribing to The Worker. I said it was a piece of hypocrisy for those subscribing to whimper and cry out when they thought a few pounds would be going to the independent press. I make a final appeal to honorable senators on the other side to consider what they are going to do. Suppose a Government consisting of the members of the party to which I belong proposed that, if any officer of the Department chose to make an accusation against any elector for a breach of the regulations - we have not seen the regulations yet - the charge should be held to be proved until the person charged went to the trouble and expense of disproving it. Honorable senators opposite would say that such a proposition was a reversion to the methods of barbarism, and so it is. It is surprising to me that such a proposition has come from this Government; and I would be more surprised if I did not believe in my heart that it is not the Government which is responsible for the authorship of the provision, but the officers of the Department. There is a desire on the part of those officials to constitute themselves a sacred caste, and to have it laid down that once they have made a charge it is to be taken as proved. They are not to be reduced to the level of ordinary citizens, and to have to accept the obligation that is cast upon me, and upon other citizens, of having to prove any charge we make. The mere averment of an official of the Department is to prove the case unless the person who is summoned disproves it. The person who is summoned may be absent. If honorable senators opposite were to apply that principle to any other law, they would see at once that the thing is absolutely indefensible. Seeing that the provisions of the Bill will not in any sense be weakened by the proposal I have submitted, I ask them to seriously consider whether they will pass the proposed new section or not.
– The only case where such a provision is justifiable is in cases where the Department sends out notices to people, whose names are on the rolls, that their names will be removed unless they object, because they are then believed to be dead.
– No one should die in Australia without an official certificate.
– A lot of people died politically on 13th April,
– And a lot of them were revived politically on 26th April. The honorable senator, by his interjection, may seek to obscure the issue; but there is no party question involved in this. Senator Russell has made the statement - I do not know whether it is correct or not - that the majority of the officers of the Department are favorable to the views of honorable senators on this side of the chamber. If that be so, honorable senators opposite must see that, if this clause is passed and is put in operation, they and their friends will suffer more than the friends and supporters of honorable senators on this side. I rest my objection to the provision on this single question : Ought we to relieve an officer of the Department from the obligation which is placed upon every other citizen of proving any charge which he makes ?
– This is the second time the Leader of the Opposition has addressed himself to this proposition, and his heated manner showed that he is extremely anxious that it should be deleted.
– Hear, hear ! I should think so.
– Senator Vardon, like Senator Millen, is not in love with the Bill ; and probably those honorable senators would be better pleased if it had not been introduced.
– There has been no attack from this side on your enrolment provisions.
– Although the honorable senator did not condemn the proposal for compulsory enrolment, he did not say one word in favour of it. There were other honorable senators sitting in opposition who condemned the principle of compulsory enrolment. One would think, from the heat displayed, that this provision was an entirely new one in Federal legislation. As a matter of fact, there are similar provisions in three or four Acts which stand upon the statute-book to-day. I never heard any of the honorable’ senators who are so strong in their opposition to this proposed new section object to those provisions in the other Acts.
– In every case I have objected.
– As a matter of fact, Senator Keating defended the provision in the Customs Act. If it be a good principle in respect to Customs, why should it be harmful in respect to the electoral law? No glaring case of injustice has been brought to light regarding the administration of similar provisions.
– There is a vast difference in the nature of the cases.
– That is the reason why I find it difficult to understand such strenuous opposition being aroused in this instance. It is a trivial matter, whereas, in other cases, criminal charges might be lodged.
– This is manufacturing criminals.
– I am sorry that Senator Rae should make such a statement. I do not think that he seriously believes that the present Government would willingly introduce a provision to manufacture criminals. All “that the proposed new section means is that, unless a man or woman against whom a. charge of contravening the regulations is made is not present at the Court when the case is heard, he or she will be adjudged guilty in the absence of evidence to the contrary. Where is the seriousness of the obligation that is thereby imposed on electors?
-Colonel Cameron. - Does the Minister really say that that is a legitimate position in which to put a. man?
– ‘The Government believe absolutely that this provision will work in the best interests of the citizens of Australia, will remove many of the difficulties inseparable from the compilation of electoral rolls, will save expense, and prevent worry and loss of time.
– I am rather sorry that this harmlesslooking provision has been made the subject of such heated debate. I am also sorry that the Minister in charge of the Bill should stick to what seems to me not to be a very important provision. The case of prospectors has been frequently mentioned. For many years I have been intimately associated with parts of the country where prospectors work, and I know a good deal about their difficulties. It is quite right that these special difficulties should be borne in mind. The proposed new section appears to me to be likely to act unfairly towards many persons’ whose employment is nomadic in character. Quite a number of men move about from one part of the country to another, and it is clear that they are not in as good a position for enrolling and keeping themselves familiar with the obligations which the law lays upon them as if they were living in one constituency all the time.
– Every citizen will be supplied with a copy of the regulations.
– My experience convinces me that there are hundreds of persons who will never get copies of the regulations, owing to their remoteness from post-offices ; or, at all events, they will not get them until it is too late to have an opportunity of doing what is necessary. Charges against them may be heard in their absence, and because they do not prove their innocence they may be fined. The prosecutor will, we will say, make his charge against John Jones. Jones will be adjudged guilty and fined without having any opportunity of being present to combat the charge. I am strongly in favour of compulsory enrolment, but I do not believe that the elimination of this proposed new section would vitiate the new system in any sense. It would simply place the onus of proof on the shoulders of the administrative officers. I am sorry that the Minister should fight so strenuously for this provision, which I shall have to vote against if a division is called for.
– I was very pleased to hear the remarks of Senator O’keefe, who evidently has a clear grasp of the situation. Let me point out the difficulties that may occur. Say that there are a dozen Sullivans, or a dozen Joneses on an electoral roll. One Sullivan may get a notice that is intended for another. The man whose name is struck off the roll by the electoral officers in Brisbane mav be the Sullivan whose name ought to have been retained, whilst another who has left the district may be left upon the roll. Senator Givens is well acquainted with hundreds of men who are constantly on the move throughout Queensland. How many of these men will remember that they have to notify the Electoral Office whenever they move from’ one place to another? Yet if a man neglects to do so, he may be fined on the mere averment of an electoral officer. Take the western country of Queensland, around Cloncurry. There are men there who remain in isolated parts of the country from year’s end to year’s end. It is questionable whether many of them will receive copies of the regulations, even if they are posted. Many men do not get letters and newspapers for months together. Yet such a man, for failure to enroll, may, on the mere averment of an electoral officer, be fined. Surely the officer ought to prove that a person charged has received a notice and refused to enroll. We do not know what the regulations are to be like. We have not seen them. I have in_ mind a case in which an elector under this provision might be served with a notice that he was on the roll, and later with a summons for having failed to enroll his name. The notice and summons would be directed to the post-office at Charters Towers, while the man might be at Cloncurry, Croydon, or Gympie. He would never receive either notice or summons, and an officer of the Department, in his absence, by a mere averment that he had failed to enroll his name, would secure a conviction against him, and he would be fined. It might be twelve months later before the man would be discovered and the fine levied upon him. I admit that people should take more interest in these matters than they do, but we all know that many people do not take much interest in them. The hardest cases may occur under this provision in vast territories like Western Australia, New South Wales, and Queensland, where there are very many people who seldom come near a town. If they want flour they very often go to the nearest station. Such people would never get their summonses under this Bill, and yet they would be fined. I can understand the desire of the Minister to adhere, as far as possible, to the strict letter of a Bill he introduces, but there can be no doubt that this provision will give rise to many very harsh cases. I think the officer of the Department should be called upon in Court to prove his case to the satisfaction of the Bench. He should certainly give evidence in support of the charge, and then if there are extenuating circumstances the Bench may impose a small fine, or perhaps dismiss the charge. An elector should not be called upon to bear the expense of perhaps having to travel 200 or 300 miles to attend a Court to answer one of these charges, even though he may have received a summons; and in any case he should be assured that he will not be convicted without evidence. I have never believed in the French system of assuming that a man is guilty of an offence unless he proves his innocence. We have, for strong reasons, a similar provision in the Customs Act, but I confess I do not like it, even in that Act. Why should not the Department, with all its machinery, be called upon to prove a man guilty of an offence with which he is charged? I believe that every man should in the eye of the law be deemed innocent until, in accordance with the law, he is proved to be guilty.
– My belief has always been that it should be the object of all law to make it easy to do fight and difficult to do wrong. On this occasion I believe the Opposition are right, and in order to encourage them to be right more often, I shall vote with them. I fail to understand why the Government should stick so tenaciously to this provision. I call this bureaucratic tyranny run mad. It is proposed that in any prosecution in any Court of summary jurisdiction in respect of any contravention of any of the regulations instituted by any officer or any person acting under his direction, the averment is to be considered proof, in the absence of proof to the contrary. This is one of the most all-embracing provisions to enable the official to tyrannize over the elector that I ever saw.
– Where does the tyranny come in?
– I am absolutely astounded that any Government should introduce such a tyrannical provision in any Bill. Far as this Government does occasionally lapse from the principles of Democracy, I never thought they would go so far as to introduce a provision of this kind. If they will not consent to postpone the consideration of this proposed new section in order that they may think the matter over calmly and submit a more modified provision, I trust the Committee will knock it out. I decline altogether to blindly follow my party when I think they are doing wrong.
– That is how we treated the honorable senator last night.
– Never mind how I was treated. I am thinking of how the electors are going to suffer under this provision. I have had some little experience of some of our Courts of summary jurisdiction, and I have yet to learn that those in. Victoria are superior to those in New South Wales. Every magistrate and every official charged with a prosecution is” looking for a conviction anyhow, and here the Government are proposing to place the electors at the mercy of people who are more or less tyrants. A man is to be charged with an alleged contravention of the law - for it will only be alleged until it is proved - and he is to be considered guilty if he happens to be unable to get into Court in time to answer the charge. It is a poor Cockney kind of proposal which might be expected from an individual who has never been beyond the precincts of a big city, and knows nothing at ail of the conditions of our country districts. It might suit people from the purlieus of Sydney and Melbourne, who can bump up against officials and all the paraphernalia of civilization at any time.
– If it becomes law there will be more convictions under it in the cities than in the country districts.
– People in the cities have greater facilities for avoiding the officers of the law, and are more practised in dodging them. The Minister will be making a terrible mistake in pressing this proposal upon the Committee. I hope that the Government will recognise that obstinacy is not firmness, and that it is not wise to stick to every letter and clause of a Bill drawn up by draftsmen who desire to have the law vindicated on every possible opportunity. Honorable senators on both sides have spoken of the great respect which all should have for the law. I never had very much respect for law myself, because I have recognised that nearly all laws are due to the efforts of privileged persons to secure or to confer privileges on a minority that does not in any way deserve them. Laws which put power into the hands of bureaucratic tyranny tend to submerge the Democracy, and the efforts of real Democrats should be to put a stopper on that kind of thing instead of to promote it. We should have as few laws as possible, and they should be so clear as to be easily understood. We should not instil into the minds of electors a hatred of the law by putting them at the mercy of any person who chooses to bring a prosecution against them for an alleged offence whirh, even though it may have been committed, is a purely parliamentary or politically-manufactured crime.
– Why have any laws at all?
– ‘Really I do not know.. I did not start making laws. No one ever heard me advocate the establishment of any laws.
– What is the honorable senator here for?
– Primarily to try to repeal all the bad laws I possibly can.
– Twenty years ago the honorable- senator said the same thing.
– That shows my consistency. The way to prevent people from breaking the law is to have as few laws as possible, and to see that they are in accordance with the moral law. Every law we pass should be in strict accordance with the moral law, and should assist people to do right, and make it more and more difficult to do wrong.
– That is what this Bill is for.
– It is not. It is pure trash and humbug to elevate this provision to such an ideal height. Every Minister who introduces a Bill is, in the case of minor clauses, largely in the hands of his draftsman, who attempts to carry out the ideas submitted to him, but when he finds that the objections to a provision of this kind are based upon genuine grounds, he should not persist with it. It is not right that in his absence a man against whom a prosecution has been instituted should have the burden imposed upon him of proving his innocence of an offence which no reasonable man would elevate to the importance of a crime. .If this is supposed to be the way to establish Democracy, I am full of it.
– I have been surprised and amused a.t the interest which some senators opposite have during the last few months taken in the poor widow, and the poor nomad in the back country who may be prospecting or shearing. It is a newborn zeal with them.
– Why ?
– It was never displayed before, and very little in this connexion was attempted by our honorable friends. I have been amused, also, by Senator Rae’s utterances upon this provision. He says he came here to do away with all laws.
– I did not say all laws, but all bad and unnecessary laws.
– The party to which the honorable senator belongs, by whom he was nominated, and by whom he was sent here, sent him here. to make laws. It is all very well for honorable senators to’ talk about what the Government and the officials of the Electoral Office are doing. They are doing the very best they can, when a law is passed, to see that its administration is effective; and that is what they are aiming at in this clause.
– By making every one guilty on the “ say so “ of an official.
– There is no making every one guilty on the “ say so” of an official. A majority of the Senate have approved of compulsory enrolment. I do not know whether Senator Rae approves of it or not, because one never can tell what he does approve of. One day, for instance, he approves of a thing; on the next day he does not know where he is, and on the day following he is opposed to it, so that we do not know what he thinks. We must leave him almost out of the count.
– You will know when the vote is taken, as you always do.
– That is right enough. The honorable senator may vote absolutely as he pleases. It is a matter of indifference to me personally how he votes, although I would like to see him vote reasonably and speak rationally when he is dealing with a measure of any importance. What is the principle involved! here ? A majority of the Senate have .approved of compulsory enrolment. Honorable senators on the other side did not approve of compulsory enrolment, and now, when we come to the clause which will make compulsory enrolment effective, they seize the opportunity to attempt to defeat it, and a few honorable senators on this side are doing all they possibly can toassist them to achieve that object. What does this clause mean? We agree that it is the duty of every citizen to enroll. I would like Senator Rae to endeavour to distinguish between a citizen and an elector. A citizen, is not an elector until his name is on a roll. It is provided in the Bill that a man’s name must be on a roll, and he is responsible for seeing that it is. If after every facility to enroll is given some persons fail to do so deliberately, and others unintentionally, it is a violation of the law. It does not matter what the cause is when a man does a wrong thing -
– Run him into a yard and brand him.
– In the case of compulsory enrolment, what is the proof that the law has been evaded? The proof is that the name of a man is not on a roll.
– And something more than that - that the name ought to be there.
– Thousands apply and do not get enrolled.
– If Senator Rae, or, for the matter of that, Senator Millen, knew that his name should be on a roll, that compulsory enrolment was the law of the country in which he lived; and neglected or deliberately refused to put his name on a roll-
– Some fool of an officer left my name off after I had applied.
– That is a different thing. If. after the honorable senator applied, a fool of an officer left his name off the roll, the latter was guilty, and not the former. That the name of the person is not on a roll is conclusive proof that the law has not been complied with. It does not matter what the cause may have been.
– But the Court does not look at the roll.
– All that the officer requires to do is to see that the name of the man is not on the roll.
– The officer ought to do more. He should show that the name ought to be there.
– The very fact that there is a law saying that the name ought to be there is proof enough.
– There are a great many citizens whose names ought not to be on a roll.
– All right. I leave that to the honorable senator.
– That is to say, they are not eligible to be put there.
– I know that the honorable senator would like to see far fewer of the prospectors and shearers he talks so much about on the rolls.
– You know that that is not true.
– I am very sorry if I have misrepresented the honorable senator. I do not know that my statement is not true, and he has never given any evidence that it is not true.
– I am not taking their votes away by abolishing postal voting.
– The fact that any names are not on a roll is proof that the law has not been complied with.
– No. A man may have taken all necessary steps to be enrolled, and his name may have been left off the roll by accident.
– That is a different thing altogether. The fact that a name is not on a roll shows that the law has not been complied with. Then the assistance of a Court is invoked, and it has to be proved whether there was any justification for the name being on the roll. The officer from the Electoral Branch has not to prove that there is no justification, or that there is any justification. All he has to prove is that the law has not been complied with. It is the place of the elector to produce the proof, because no one else can. An officer cannot prove a justification why the name should not be on the roll. It is the elector himself who can prove a justification for its not being there, and he is given an opportunity to do so at the Court. If he can prove that he took all necessary steps to see that his name was put on the roll, the Court will exonerate him, but if he cannot prove that, the very fact that his name is not on the roll is proof that there was neglect somewhere, and it is his duty to prove that the neglect was not on his part. What has the officer to prove?
– No. The officer has to prove that the person’s name is not on the roll.
– Well, the officer has to aver that. Can the officer from the Department be expected to exhibit the same characteristics as Senator Rae does? The very statement of an officer is based on something, but the statements of Senator Rae are based on nothing.
– Ah, that is very kind.
– I am only taking what the honorable senator has stated to-day. He has no basis for his statement that the Government are attempting to make hundreds and thousands of criminals. We are doing nothing of the kind.
– They are trying to pass a law which may have that effect.
– We are only doing what we consider to be our duty to make compulsory enrolment effective. All that the officer can do is to aver, from the knowledge that the name of the man is not on the roll, that the law has not been complied with. Then the man concerned has to come and prove that it was not owing to his fault. If he does not come, and cannot be found, then no fine can be collected from him.
– He is breaking the law.
– If he cannot be found-
– He may be dead.
– Yes ; he may be dead, or he may have gone out of the Commonwealth.
– -Yes: but the law can follow him..
– Can it follow him into the grave? I want to show the ridiculousness of the argument of the honorable senator.
– It can follow the man for two years.
– The officer has to prove-
– No ; but the honorable senator wants to compel the officer to prove that a man had some justification for not being enrolled when he knows nothing about the man. He only knows that the man did not carry out his portion of the contract, as far as citizenship of the Commonwealth is concerned.
– And your recommendation for compulsory service is that it can only be secured by this tyrannical means.
– For which you voted.
– I did not, because there was no vote taken.
– It does nol. matter ; the honorable senator does not need to quibble.
– I do not want to quibble, but you are quibbling.
– There is no quibbling on our part. Here is the Bill, and the honorable senator knows as well as anybody else that it is honestly presented by the Government to carry out the wishes of the people of this country, and yet he will get up and take the erratic course which he takes whenever it so pleases him. This clause is necessary if the compulsory provisions in the Bill are to be carried into effect.
– I desire to say a few words, because, in my opinion, the VicePresident of the Executive Council kicked up so much dust that he got away from the real point, which has no bearing upon the principle of compulsory enrolment. Had not the honorable senator made the declaration that this proposed new section is necessary, I would have asked him to postpone its consideration for a week, or until the next sitting day. There will be no loss of dignity or disadvantage on his part in agreeing to a postponement. It will afford time for us to give maturer consideration to the real effects of the provision. Will the Minister agree to a postponement ?
– The clause simply provides that when a charge is made by an officer against a person, the absence of the latter shall be a proof of his guilt.
– No ; it . provides that the absence of the man’s name from the roll shall be a proof of his guilt.
– Or the averment of the officer.
– There is another thing which ought to be proved, not merely that the name is absent, but also that it ought to be there.
– In my opinion there is no occasion for the Government to say that they are being unfairly opposed by their own supporters. Notwithstanding all the officials at their command, the Government ask us to enact that their case shalL be taken as proved without establishing it in a Court of summary jurisdiction. We ask that if they have a complaint to make against a citizen, they shall prove their case to the satisfaction of the magistrate. Surely, that is not too much for us to ask ?
– Is not the fact that the name of the man is not on the roll all the proof which is necessary?
– There may be a hundred reasons to account for the name not being on the roll. According to my reading of the clause, not only will it inflict a very great hardship upon men who live far from the Court, and to whom a charge of this sort may mean the loss of a week’s work, but in many instances a man who has changed his address in a large city like Melbourne or Sydney may never know that a case against him is coming on in a Court, and, according to this clause, his absence is to be taken as proof of guilt. We simply want to provide, and I think that the Minister should agree to a provision, that when a charge is made against a man, the Department shall prove their case in a Court of summary jurisdiction, as the Department has to do in every other reasonable case. In my opinion, the Acts cited by the Minister furnish a strong ground for our not proceeding further on those lines. There is no good reason why any one should be deemed guilty until his guilt is proved. There is no good ground for getting away from the sound principle that a man is innocent until he is shown conclusively to be guilty.
– We have got away from that principle, and very far away indeed, in three or four Acts.
– I can assure the honorable senator that I have not got away from the principle, and I do not intend to get away from it now. But let us take the Minister’s interjection. I retort that many an innocent man has had to bless the fact that even the worst criminal has the privilege of being considered innocent until he is proved guilty. The Minister said in an off-hand way that in three or four Acts we have got away from a sound principle. Well, that is, to my mind, a reason for getting back to the principle.
– That is not the only reason ; I have given others.
– I know that; but- one of the reasons which the honorabe senator gave was that in several Acts we have got away from that which has been proved through the ages to be a sound principle, namely, that a man shall be deemed innocent until his guilt is established. “If,” the Minister tells us, “ we take this step, weshall only get a little further away from that principle. If we have taken the step in two or three Acts, why should we not do so in the case of this measure?” If we take his advice in this instance, no doubt we shall be asked to do so in the case of another measure. We do not ask the Government to discontinue the prosecution of persons who commit breaches of the Electoral Act. We simply say that, when a breach of the law has been committed, proof should be adduced to the satisfaction of the Court by the officer making the charge. Proceedings may be taken against a shearer who is 400 or 500 miles away from his home. The case against him may be set down for hearing right in the middle of the shearing season, and, if he wishes to defend himself, he will have to lose the whole of his earnings. Senator McGregor made some reference to the people who were dead. I say that, if a person dies after a charge has been made against him, he must be found guilty, because he cannot prove his innocence. If the Minister will not consent to an amend ment, I ask him to consent to the postponement of the clause. Possibly the happenings of the last few weeks may cause the members of the Government to think that I am anxious to speak against them and to vote against them. Nothing is further from the truth. It is quite painful to me to find our Government introducing clauses of this kind, and it is quite painful to have to vote against them. If there is a reasonable chance of more mature consideration causing the Minister to alter his mind, he should agree to the postponement of the clause. He will suffer no loss of dignity by adopting that course. There is an honest difference of opinion amongst honorable senators, and I earnestly appeal to the Minister not to force on a division now. Some of the supporters of the Government will vote against the Government if that is done. If the clause were postponed, when it was again called on the Minister would be in as strong position as he is in now, or in even a stronger position, because he would have given honorable senators an opportunity of looking into the effect of the clause.
/ - While I am perfectly loyal to the. principle of compulsory enrolment, I cannot understand how that principle can be assisted or handicapped by the retention of this provision. Like Senator Gardiner and Senator Rae, I hold very strong views against this provision. No doubt there are occasions when the principle embodied in the provision should be inserted in some pf our Statutes. Reference has been made to the fact that under the Customs Act the onus is thrown on a defendant of proving his innocence. Under the Victorian Mines Act; if an accident happens in a mine, the onus is thrown on the mine-owner or manager to show that the accident was not caused by any neglect on his part; but that principle is not one that ought to find a place in an electoral law. Senator Gardiner, as some honorable senator’ interjected, was drawing on his imagination when he said a shearer some hundred miles from his home might be prosecuted. He pointed out that it would not be convenient for such a man to attend Court to prove his innocence. However, we need not go so far as that. Probably the greatest number of prosecutions will be in places where there is the greatest population. In many cases, although their names had been left off the rolls through no fault of their own, men would rather submit to be fined than lose a day’s wages. 1’he offence of non-enrolment is not a serious one, and the penalty would probably be very light. If a person charged would have to lose two or three days’ wages in order to attend Court to prove his innocence, he would not attempt to do it, and to impose such an obligation on an elector is absolutely preposterous. I hope that the Committee will not retain the clause, and unless the Government are willing to adopt the suggestion of Senator Gardiner and postpone the clause, so that a more satisfactory provision may be framed, the only thing that we can do is to vote against it. I sincerely hope that there will be a majority of honorable senators prepared to vote for the omission of this objectionable provision.
– As I said during the secondreading debate, this provision places the whole of the electors of Australia in the same position as smugglers. Neither the Vice-President of the Executive Council nor the Minister in charge of the Bill has been able to show the slightest analogy between the measure and Acts in which a. similar provision is contained. The Minister or the officials of the Department have drawn up these provisions without any clear knowledge of the varying conditions in the different States, and of the great difficulties under which the electors in some instances labour in connexion with electoral matters. The clause gives any officer of the Department power to proceed against electors for neglecting to enroll. Under the Interpretation section of the principal Act, the word “ Officer” includes any person charged with the conduct of an election, from the Chief Electoral Officer down. The doorkeeper of a polling-booth is an officer. Under the clause the doorkeeper of a polling-booth may not only institute a prosecution in a Court of summary jurisdiction, but may delegate the power of prosecuting to somebody else. We hold that offences under the Customs Act and the Australian Industries Preservation Act are so serious that the Crown should be armed with means of securing convictions, and therefore, under those Acts, the onus of proof is thrown on the defendant. But I do not think that there is power, under the Customs Act, or the Australian Industries Preservation Act, for the prosecuting officer to delegate the power of prosecution to somebody else.
– I call attention to the fact that there is not a quorum present.
– Why the Minister is so seized with the idea that it is necessary to retain this tyrannical provision in the clause is a mystery to me. There is not the slightest justification for the provision. It seems to me that this Government is getting body, soul, and boots under the control of the departmental officials The Government officers, in their desire to make the enforcement of Acts easy, seem to have lost all instinct for natural justice. The Departments are gradually becoming one wholesale bureaucracy. I could give dozens of instances to show that that is the growing tendency.
Sitting suspended from 1.0 to 2.30 p.m.
– I have pointed out difficulties that may arise under this proposal, especially in the back-blocks districts of the larger States. Take the case of a drover at Winton, Queensland, who is in charge of sheep or cattle. Because he neglects to comply with regulations which he may never have seen, the policeman will be sent after him. He will then have to consider whether he shall give up his occupation in order to go to Court, or whether he shall let the Minister and the Department go to a very warm place. In the latter event, a conviction will be recorded against him. For what object? Of course, the Vice-President of the Executive Council regards this criticism with derision. Personally, I find it hard to determine whether the proposal is a subject for laughter or for tears. There is no precedent for such a thing in any law with which I am acquainted. For all offences against the person, whether the most trivial or the most severe, whether the personal or moral effects are grievous or slight, and whether the case be heard by a Court of summary jurisdiction or by the High Court itself, the onus lies upon the prosecutor to prove his case. In regard to injury to property the same rule prevails, whether the case be the larceny of a pennyworth of paper or of thousands of pounds. Every prosecutor in every Court has to make out a prima facie case and prove his charge beyond the shadow of a doubt.
– That is not the invariable rule. I can quote a Queensland Act in which it is not the rule - the Aboriginals Protection Act.
– The honorable senator must) know that that Act deals with quite exceptional cases.
– The honorable senator said there was no exception.
– The exception simply illustrates the force of a great principle. As has been pointed out by Government supporters, injury will not be done to the community because a person neglects to apply for enrolment. The injury is done to the man himself, if to anybody.
– Does not the honorable senator think that failure to perform the duties of citizenship constitutes an injury to the community?
– I do not think so. If there were penalties in all cases for neglect to perform citizen duties, whether municipal, ‘State or Federal, most of us would be in gaol, especially if the proof required by the law were merely the word of an official, which was to be taken as though it were the ukase of a czar. I am by no means hide-bound to precedent. I do not think that, because a proposal is put before the Legislature for the first time, it must on that account be presumed to be injurious or dangerous. But there is something in precedent, after all. We have had about 100 years of electoral reform, leading up to adult suffrage. In every civilized country the facilities for enrolment and voting have been increased. Yet- there is not a single precedent in any country in the world for such a proposition as this. The proposal is reminiscent of the French Revolution, when the leaders professed themselves to be adherents of the highest principles of justice, order and law. They declared, “ We must all be brothers,” and those who would not be brothers with them they killed. They affirmed that it was necessary to establish fraternity, and they guillotined those with whom they were not inclined to be fraternal. In this case the Government say that it is necessary that all the citizens of this free country should enroll. Those who neglect to enroll they will punish. Furthermore, they will take from these citizens the natural right of being proved guilty before they are convicted and punished. Ministers never proposed such a thing when they assisted in framing previous Electoral Acts.
– I never before ate the same lunch as I had to-day. Would the honorable senator argue that I ought not to have eaten it because it was not the lunch I ate ten years ago?
– I cannot follow the analogy. If it is intended to suggest that because this proposal is novel it is good, the argument is an unsound one. It is not good because it is novel, nor is it bad for that reason. But there is neither precedent nor reason for what is proposed. None whatever. Senator Rae gave a sound warning to the Government. If our parliamentary institutions are such that people are indifferent to them, and will not perform what should be regarded as one of their greatest rights, there must be something radically wrong with Parliament and its administration. Evidently the feeling for the exercise of the franchise is weakening. We desire to strengthen it. But the Government propose to do so in a manner which is most repulsive to all Britishers. Ministers would do well either to amend this clause or throw it out of the Bill. There is not a single honorable senator opposite who can afford any justification for it.
– We think we can.
– Honorable senators may console themselves with the idea that they have done so.
– We think that the honorable senator’s speech is not argument, but a mere jumbled-up heap of words.
– The honorable senator is welcome to think what he likes, and, I suppose, to express himself in the courteous fashion which is the usual refuge of so many of his colleagues. Our retort is - what possible injury is done to the community by a person’s neglect to enroll ; and what justification is there for endeavouring to effect remedial measures by a penal clause which perverts the whole principle of the administration of justice in British communities, and reverts to the practice of the old French penal code ? It almost calls for an apology that one should have to stand up and insist upon this plain principle of justice. The very insistence upon it makes one more or less of a bore; but, nevertheless, it must be done. Do honorable senators realize the injustice that may be done under this provision through the negligence of officials in the back-blocks, or through their misdirected zeal in administration? A man may be required to give up his work and travel many miles to a Court, where he will be asked to establish his own case, and at every step will be presumed to be guilty. What has happened in the use or neglect of the franchise in Australia that calls for so drastic a provision in an Electoral Bill? We have been invited to believe that the card system, which was to be introduced, will be almost perfect, and I say, let us put it to the test, and if, by prosecutions in the ordinary way, the Department cannot give effect to the compulsory provisions of the Bill, the Government can then come forward with a proposal such as that now before the Committee. Before the card system is given a trial, they anticipate that it will be impossible to secure compulsory enrolment without a provision involving a disgraceful perversion of the principles of justice. Amongst a nomadic population, covering great distances, I have no doubt that this proposal will result in the persecution of many very deserving electors. If the Government do not accept the suggestion to postpone the consideration of the proposed new section, I hope the Committee will recognise the force of the objections to it, and will negative it.
– There are two very simple propositions before the Committee. After long deliberation, the Committee has affirmed the principle of compulsory enrolment. We are now called upon to deliberate as to how that principle is to be given effect. Much of what Senator St. Ledger has said about compulsory enrolment has nothing whatever to do with the matter now under discussion. We are faced now with the question of how we are to carry out a principle we have affirmed, and the Government, with the advice of the Crown Law officers, say that this is the only practical way in which we can enforce compulsory enrolment.
– Do I understand that that is the advice of the AttorneyGeneral’s Department?
– Is it a legal question or the advice of the Crown Law Department?
– The question arises as to how we are to enforce the principle of compulsory enrolment, and the Crown Law Officers say that this is the only practical way in which to do it. The proposed new section 6ie reads -
In any prosecution in any Court of summary jurisdiction in respect of any contravention of any of the regulations relating to compulsory enrolment, instituted by any officer or by any person acting under the direction of an officer, the averments of the prosecutor contained in the information or complaint shall be deemed to be proved in the absence of evidence to the con.trary
What is the alternative ? It is that the Department shall prove that the person charged is not entitled to be enrolled, and is not enrolled. Let honorable senators consider what a task the Department would have to take upon itself in order to prove these two negatives. It would, first of all, have to prove that the elector was over twenty-one years of age, and it would be necessary to hunt up birth certificates to do so. It would have to prove that he had been in the Commonwealth for a certain length of time, and then that he was not enrolled for any one of the seventy-five electorates throughout Australia. Before honorable senators allow themselves to be carried away by the sentimental objection to this provision, they should consider the difficulty which would be placed in the way of the Department if, by the adoption of the only alternative for this proposal, it was called upon to prove a negative. The opposition to this proposed new section is really opposition to compulsory enrolment. If there is a general desire for compulsory enrolment, the Bill provides the only practical way of giving effect to it. While the officials of the Department would, if the ordinary procedure were followed, be called upon to prove a negative, the individual charged under the proposed new section could, at any time and with the greatest possible ease, establish the affirmative. He would know whether he was enrolled or not. I ask honorable senators to bear in mind, also, that the averments of the prosecutor are to be deemed to be proved only in the absence of evidence to the contrary, and if a person charged under this proposed section is prepared to appear before a Court, and say that at a certain time and place he registered his name as an elector, the Department would then be called upon to prove its case, and that he had not registered his name at the time and place mentioned. It is clear that if a frivolous prosecution were instituted under this proposed new system, and the Department could not refute the evidence of a man brought before the Court, it would have to pay the costs of the prosecution.
– Where are costs given against the Crown?
– In plenty of cases in which it is considered that the Crown has brought a frivolous charge before the Court. Of course, my honorable friends opposite do not want compulsory enrolment, and, therefore, do not desire the adoption of a provision by which it could be enforced. I quite understand their position. I am not appealing to them. I do not expect them to vote for any proposal which would give effect to a principle in which they do not believe. But I do appeal to honorable senators who desire to see the system of compulsory enrolment made effective. Unless they are prepared to give the Government the power asked for in the proposed new section, it cannot be made effective. But for such a provision the Department would be placed in an impossible position, and the Bill, so far as it makes provision for compulsory enrolment, would be made unworkable.
– I am not at all surprised at the line of argument adopted by the Minister of Defence, but I direct attention to the fact that he has given the whole case away in the effort to defend it. The honorable senator asked, first of all : “ How are we to enforce compulsory enrolment?” The answer is : How do we enforce other provisions of the law? We are continually passing laws, and attaching penalties to any breaches of them. How do we enforce the provisions of those laws? Certainly not in this way. We adopt the ordinary procedure of making a complaint and establishing it in Court. When we are asked how we are to enforce this law, the answer is that we should enforce it just as we enforce every other law, with some exceptions, to which reference has been made. I do not think that the Minister of Defence could have heard the speech made by Senator Findley earlier in the debate, because he has given a complete answer to it. Senator Findley said that the Electoral Department was not likely to move unless it had clear proof that an offence had been committed. The Minister of Defence says thatthe Government want this proposed new section in order that the Department may, without proof, enter upon an exploring expedition.
– I never said anything of the kind.
– The honorable senator asked the Committee how the Department is to prosecute these charges unless we agree to this provision.
– There is a difference between having proof and having cast upon one the onus of proof.
– Senator Findley distinctly assured the Committee that, before the Department proceeded in these cases, it would have definite knowledge of the fact that an offence had been committed.
– Hear, hear. I say the same.
– Then what does the Minister of Defence mean by the picture he drew of the enormous difficulty with which the Department would be faced in proving offences, the proof of which they have already in their possession? Either the Department will have substantial proof of an offence before it launches a prosecution, or it will not. Now, which is it to be? Is the Department going on the blind - on a mere game of bluff?
– That is a poker expression.
– I was sure that Senator Givens would understand where it came from, and if ever we were engaged in a game of political poker, it is on the present occasion. I want now to “ call “ the Minister. I will “call” if he will “ show.” I ask the honorable senator definitely : Does he pretend that the Department will proceed to take legal action against any person unless it has what may be considered reasonable proof of an offence ?
– Why are you putting these queries to me now?
– I admit, at once, that it is folly to put any query to the Minister with the hope of eliciting information. We may take it for granted that, before the Department launches a prosecution, it will have made itself reasonably certain that a breach of the Act has been committed. All that we ask fs that, when the Department has that information in its possession, iti shall he disclosed in the Court before the man is asked to answer the charge. The Minister of Defence has talked of the difficulty to which the Department will be put in hunting up certificates and getting other evidence. It will have to do that anyhow, and do it before it takes out a summons. Otherwise it will take out a summons on the blind or “on spec.” Is it going to plead guilty to seeking the power to issue summonses broadcast in order to save itself the trouble of looking into matters ? It must have in its possession such proof which is sufficient to make out a prima facie case. It is only in accordance with ordinary procedure that, when a case under this Act is called on in a Court, the plaintiff shall state the grounds of his plaint. That is all we seek to secure. We are reminded of the amount of trouble which our suggestion,if adopted, will throw on the Department. Are not the electors entitled to consideration?
– They get it, too.
– Electors do not want any consideration, because they have complied with the Act. It is wanted by those who refuse to put themselves in the position of electors.
-I do not propose to refine words on that point. If our proposal will involve the Department in a tremendous amount of trouble in a prosecution of this kind, does not the provision put an individual to the same amount of trouble? Take, for instance, the proof of residence. The Department ought to make itself clear as to how long a man has been resident in a district before -it takes out a summons against him. The man has to call evidence to prove that he has not resided in the district for a certain time. It is he who has to prove the. negative. The Department, by its averment, declares that he has lived in the district for a certain period. On what did it make its declaration? In the language of Senator Pearce, the officers say, “ It is too much trouble to us to prove the facts.” According to the honorable senator we must not venture to ask the Department to go to. any trouble before it launches a prosecution. That would be too great a crime for serious consideration by a democratic assembly. That public servants should be asked to secure their proofs before they venture to launch a prosecution is, according to Senator Pearce, asking too much. We are to throw all these burdens on the citizen, but the public servant must not be inconvenienced. It is beneath his dignity that he should have to go round and make inquiries to build up a case against a man who, he thinks, has done a wrong. Or, if he has that proof, if “he hasmade preliminary inquiries, and built up a case, what possible objection can there be to him stepping into the witness-box and relating that experience for the benefit of the magistrate? What we ask has nothing whatever to do with compulsory enrolment. I have not heard any objection to compulsory enrolment from this side, except so far as it is incomplete. All we ask, I repeat, is that the Department, having its proof sufficiently pronounced to justify an action, shall do with persons charged with breaking the Electoral Act, exactly what is done with persons who are alleged to have broken other Acts, and, that is, that the officers shall go into the witness-box, and explain and elaborate the charge which the elector is called upon to answer. Is that asking anything very serious? Does it affect at all the principle of compulsory enrolment? For the Minister to say, and to give the authority of the Attorney-General for the statement, that there is no other way in which compulsory enrolment can be enforced, is, I think, to speak under a misapprehension. I decline to believe that the Attorney-General’s Department has laid it down that in no other way can this principle be enforced. There are dozens of ways in which it could be done. We could give greater powers to the officers. We could, for instance, give them the power to arrest a man, who was not enrolled, and take off his head straight away. I would remind Senator ‘McGregor that, in a country with a large nomadic population, thousands of persons will be unable to attend the Courts, and, therefore, will have verdicts given against them. What does the Department propose to do in such cases?
– The Department will have to catch the men.
– Exactly. Does the Minister mean to say that the Government will not make ah effort to collect the fines, and that the whole Act is to be allowed to break down?
– I am not troubling about them.
– I know that the Minister is not troubling about them, but I am.
– It is very recently that you began to trouble about them.
– Whenever the Minister is called upon to say anything here all that he can appeal to is either class or party prejudice. He has never attempted to seriously argue any point. What he always does is to fall back on some more or less imaginary evils committed by his opponents. Can he, or any one else here, point to a time since I have taken an active interest in public affairs when I have been anything else but an ardent advocate of adult suffrage? We have already approved of the principle that there shall be a fine inflicted, and the only way in which we can make enrolment compulsory is by having a penalty. The fine may be small, or it may amount to £2. What is to happen if men do not appear to meet the charge, and the Court fines them 5s. each? Will the Department let the verdict stand, or send somebody to find the men? Suppose that there is default in payment, what is to happen? What the Government are going to do if they have anticipated the position at all is to say, “ We will ignore that portion of the Act.” I venture to predict that, in such circumstances, no Government will attempt to enforce the provision. If it is intended to carry out the brutal tyranny which is being set up, the Government will have to follow a man, no matter what the cost may be to the country, to compel obedience to this provision, or, practically, to proclaim to the electors at large that they need not bother about the matter at all, as there is no intention to enforce the penal provisions. Since Ministers have referred to the Attorney-General, and obtained his definite opinion, and also that of his officers, that there is no other way of enforcing this principle, I want them to put to that Department this proposition : “ When a judgment has been given against an elector, and there is every reason to believe that he is still in Australia, what is it going to do?” That is, I think, a problem which ought to be answered before we proceed any further with the provision.
– The more the Ministers address themselves to the clause, the more apparent it becomes that either they have misconceived its purpose and effect, or they are not furnishing the Committee with the fullest information that they have. Just before we adjourned for lunch Senator McGregor pointed out repeatedly what the officer, engaged on behalf of the Electoral Branch of the Home Affairs Department, will have to prove, quite heedless of the fact that the whole object of the clause is that he shall be called upon to prove nothing. The averment, which will have been made some days before the hearing of the case, and which will consist of a very perfunctory act, in most instances, will be proof in itself. Speaking more recently, the Minister of Defence has told us that the Attorney-General’s Department has furnished the Government with advice, or with an opinion to the effect that a clause of this kind, is absolutely necessary to carry out the provisions for compulsory en rolment. With Senator Millen, I have no hesitation in saying that that is making too great a strain on the credence of the Senate. The Minister must have misunderstood entirely the effect of the AttorneyGeneral’s opinion. I would certainly like to see the opinion of the AttorneyGeneral’s Department on a point of this kind. I have never yet known a case where a member of the legal profession, eminent or otherwise, has had the temerity to give an opinion on data not supplied. The clause provides that the averment of the officer shall be proof, in any case, of a prosecution for “ any contravention of any of the regulations “ - that is, regulations which are not yet in existence.
– Let us stick to the point.
– That is the point.
-What it refers to is “ regulations in respect to compulsory enrolment.”
– Of course.
– By degrees the Minister will get to know his own Bill.
– How many regulations are there fo be, and how many penalties are to be provided in connexion with, not a regulation, but any of the regulations - to enforce compulsory enrolment ? The Minister has carte blanche, as we have said repeatedly, to make any number of regulations in respect to compulsory enrolment, and to impose penalties for a contravention of them. And now we are asked to believe that the Attorney-General’s Department has advised that averment for proof is the only means of enforcing compulsory enrolment - averment for proof of a breach of a regulation which is not yet in existence. I venture to say that, neither the present, nor any past, Attorney-General ever hazarded such a speculative opinion. As regards Senator Pearce’ s allegation that, in a prosecution, the Department will be called upon to prove a series of negatives, I wish to say that it will be in no harder position in that respect than is’ any one of the State Departments which are constantly enforcing the law. For instance, they are enforcing the Codlin Moth Act, and other Acts, relating to pests. They are enforcing the Local Government Acts.
– And enforcing the Dog Act.
– Yes, and enforcing the Dog Act, with which the honorable senator appears to be familiar. Senator
Pearce seemed to confuse entirely two distinct things, namely, what is called -prima facie evidence, and what is called proof. In this case, simple averment will not be prima facie evidence, but conclusive evidence, and that makes all the difference. I think I am right in saying that in the large centres of population, particularly, the course will be followed of issuing a whole host of summonses returnable on the one day. I think the Department, anticipating that there will be a great number of offences will have its own form of printed summonses. Those summonses will be issued to a number of persons, and . a not inconsiderable portion of those persons will naturally imagine that the summonses are intimations that they are not enrolled, and will suffer some penalty in consequence - the penalty of disfranchisement. Probably that is the only notice they would take of the matter until a fine was demanded of them. I do not want proposed new section 6ie to be carried without some > provision to protect the individuals who will be served with summonses in that wholesale way, and, before I sit down, I shall indicate an amendment which I shall move in the event of proposed new section 6ie not being deleted. The Minister in charge of the Bill took a totally different ground from the other two Ministers. One would be inclined to believe that, in his opinion, the form of procedure proposed is a commendable one - that is to say, that simple averment should be taken as proof if a defendant does not appear and prove the contrary. Does the Minister really believe that?
– In regard to this measure, yes.
– In the Commonwealth Statutes 1905, the Minister will see, if he looks at page 218 in the “ Index to Acts in the Appendix - Electoral Act,” pretty nearly the whole of a closely printed page under the heading of offences. Will the Minister tell me, in connexion with what other offences under the Electoral Act is averment proof? It is provided in section 173 that -
To secure the due execution of this Act and the purity of election, the following acts are hereby prohibited and penalized -
Then section 174 provides that - “ Breach or neglect of official duty “ includes -
The Minister said just now that he believes that to insist on the principle of averment being proof is the best form of procedure in connexion with this Act. Will the Minister, and the Department behind him, be prepared to take themselves the sauce which they provide for the goose?
– I said “ in regard to this measure.”
– Here we have an Electoral Act which is filled with provisions for offences, and if the Department, well equipped as it is, and having all possible organization and means to put forward its knowledge in a proper form, thinks that it is necessary to fall back upon averment for proof of an offence against an individual, why will it not accept the same position itself? If any of the officers of the Electoral Branch are charged with an offence against the electoral law, are they prepared to allow a simple averment to be taken as proof of their guilt in the absence of proof to the contrary? If not, I ask, why do they wish to hold that advantageous position as against an individual ? If there should be any advantage at all in these matters, the advantage should be extended to the individual - not to the official or the Department. I think it should be certainly explained why, if averment is to be taken as proof in the one case, it should not be taken as proof in the other. I indicated a moment or two ago that I believe that prosecutions under the provision with which we are dealing will be instituted in a wholesale way, and that, in most instances, the Department will find it necessary to have on hand a large number of information or complaint forms, so that the persons alleged to have evaded the obligation of compulsory enrolment may be summoned at a proper time and dealt with in a batch. I can understand that, if the Department had twenty or thirty persons who had endeavoured to evade their obligations to proceed against, it would wish to have them dealt with on the one day, so that the officers could give evidence in a number of cases without having to attend Court on several days. But it is obvious to me that a number of persons served with summonses will take no notice of them, and, for that reason, if proposed new section 6ie is carried, I desire to have an additional provision inserted.
– You do not mean that the persons who would refrain from taking notice would do so out of disrespect for the law ?
– No. I would suggest that if proposed new section 6ie is carried, the following should be inserted as new section 6if -
Every summons to a defendant in any such prosecution as last mentioned shall have conspicuously printed upon the face of it a notice in the following terms, namely, “ At the hearing of this information or complaint you must lender or produce evidence, otherwise the statement above set forth will be taken as proof without the evidence of any further witness or witnesses in support of the same, and the penalty prescribed for the offence with which you are charged is here set forth.”
Unless something of that kind is conspicuously printed on the face of the summonses, a large proportion of the persons receiving them will take them as being notices of the kind which they have received in the past, non-compliance with which involves no responsibility or punishment.
– The honorable senator is placing a very high estimate on the intelligence of his fellow citizens.
– I am not dealing with the intelligence of my fellow citizens at all. I am speaking from some experience and observation, and I know that many circulars sent out in conformity with various Acts of Parliament, both Federal and State, are not read. My honorable friend may think that ‘he glamour of his particular legislation will have a greater attractive force for the recipients of summonses, but I venture to think that experience will prove him wrong. What possible objection can there be to notifying the recipient of a summons that, unless he tenders evidence to the contrary, the statements set forth in the summons are to be taken as proof? I have only indicated this amendment in case there is no possibility of defeating proposed new section 6ie. I certainly think that provision should not appear in an Electoral Act. I hope it will be defeated, but, in case it should be carried, I intend to move the addition of the further provision which I have indicated.
– - I omitted previously to move the deletion of this provision. I now move -
That proposed new section 61E be left out.
– It was said some time ago. that the members- of the Opposition were doing all they could to defeat or weaken the Bill. The Opposition did not oppose the second reading of the ‘measure, and we have done nothing, so far, to defeat it. What we did was to endeavour to preserve some of the most humane provisions of our electoral law. When I read proposed new section 6ie, I begin to wonder whether I am living in a part of the British Empire where it is a fundamental law that a man shall not be held to be guilty of an offence until his guilt is proved, or whether I am living in France, where, as soon as a man is charged with an offence, he is treated as if he were guilty. Under this provision we are going to throw on a defendant the onus of proving his innocence, instead of putting the onus of proof on the man who makes the charge. That is contrary t.o all ideas of British justice. It was said that all persons are called upon to obey the law. That is so. The law says, “ Thou shalt not steal,” but if a man is accused of stealing a penny post-card, the person making the accusation must go to Court and prove the charge before the person accused is held to be guilty. It would not be sufficient for the prosecutor simply to make an averment. Yet, in this proposed new section it is provided that if any officer or any person acting under the direction of an officer simply makes an averment that a man is guilty of contravening the regulations, he is to be adjudged guilty unless he proves the contrary. If a man accused of not having given notice of his change of residence said in Court, “ I posted the notice to the electoral officer, and the letter miscarried,” how could he prove it? The whole thing is utterly absurd. The Minister says he is going to have the regulations printed and sent to every elector in the Commonwealth. It will mean .a big job for the Government Printer to print about 2,000,000 circulars, and it will give a good deal of work ,tO the Postal officials to deliver them, but when a man has got a copy of the regulations, will he fold it up carefully and carry it round about in his breast-pocket, so that he may ‘examine them from time to time to see that he is not violating them in any way ? The whole thing is absurd from top to bottom. We are asked to pass a provision subjecting electors to penalties for contravening regulations of which we know nothing. There may be a dozen regulations. A man will have to bear them all in his mind, carry them about in his breastpocket, and study them daily for fear he should break one of them.
– The honorable senator is very innocent.
– Can the Minister tell us how many offences thereare under the regulations respecting postal voting?
– No, I cannot.
– How can the man in the street know if the Minister does not ?
-The Opposition have been charged with imagining extreme cases. But extreme cases have to be provided for in Acts of Parliament.If you build a bridge, you have to provide for the heaviest load which it is likely to have to sustain. Similarly an Act of Parliament must be comprehensive enough to cover every instance that is likely to occur. This Bill must be made as perfect and equitable as possible.It is quite true that under some Commonwealth Acts the onus of proof is upon the defendant. A man who violates the Customs law is placed in that position. But such a man violates the law for the sake of personal gain. He is willing to take the risk. But what is an elector going to gain by failing to comply with the compulsory enrolment law or by breaking one of the regulations ? He merely injures himself, and does not prevent any one else from exercising the franchise.
– He contravenes an Act of Parliament.
– The Government ask persons to prove what in some cases may be exceedingly difficult of proof. A man’s name may not appear on an electoral roll after a change of residence. The Electoral Officer may proceed against him. Suppose the man says, “I filled in a notice of change of residence,put it in an envelope, and posted it to the Electoral Officer.” If the Electoral Officer declares that he did not receive the notice, how is the accused going to prove that he duly sent it? Yet that man is to be branded as a law-breaker. I trust that the proposed new section will not be embodied in the Commonwealth Electoral Act.
Motion (by Senator Rae) negatived - .
That the question be now put. ‘
– The Committee having just negatived a motion for the putting of the question by an overwhelming ma jority, can the question be put by the Chairman immediately after that decision?
Question - That proposed new section 6ie be left out - put. The Committee divided.
Majority … …2
Question so resolved in the negative.
– I move -
That the following proposed new section be insertedto follow the proposed new’ section 61E : - 61F. Every summons to a defendant in any such prosecution as last mentioned shall have conspicuously printed upon the face of ita notice in the following terms : - “ At the hear, ing of this information, or complaint, you must tender. or produce evidence, otherwise the statements above set forth will be taken as proved without the evidence of any witness or witnesses in support of the same. The penalty prescribed for the offence with which you are: charged is (here set forththe penalty).’’
I move this amendment because I think the. proposed new section 6ie will be a deadletter, or it will result in a tremendous number of persons receiving summonses,’ and not; realizing their “significance, being found guilty, when they ought not to be, or with., out having availed themselves of the ordi-. nary methods of fighting the charge. There, can, I think, be no possible objection tointimating to every recipient of a summons under the proposed new section61e, which will be quite different to any other summons they are likely to receive, the consequences which may follow.
Senator PEARCE laid upon the table the following papers : -
Public Service Act 1903-1909-
Documents in connexion with the promotion of Mr. Arthur Philip Westhoven to the position of Clerk (Ledger-keeper), 3rd Class, Clerical Division, Accounts Branch, Pos’master-General’s Department, Perth.
Repeal of Regulations 204 and 207, and substitution of, newRegulation207 in lieu thereof. - Statutory Rules 191 1,. No. 175.
Senate adjourned at 3.50 p.m.
Cite as: Australia, Senate, Debates, 3 November 1911, viewed 22 October 2017, <http://historichansard.net/senate/1911/19111103_senate_4_61/>.